SHOULD I HAVE A TRIAL SEPARATION? WHAT TO DO, AND WHAT NOT TO DO

On behalf of Pinnacle Family Law on Tuesday, October 18, 2016.

News stories of Arnold Schwarzenegger's "love child" kicked-off what has become an annual ritual: the confessing of the unfaithful politician. "This has been a time of great personal and professional transition for each of us," his joint statement with wife Maria Shriver read. Understandable. A thirteen-year-old secret that has been growing up in your household, with your marital children, would cause a great personal and professional transition. It is also good media gossip, like something out of a Hollywood movie (except I doubt Schwarzenegger will be saying "I'll be back" to this one).

But what has been glossed-over in this media gossip is a more common, less interesting but more problematic, concept -- a trial separation. "At this time, we are living apart while we work on the future of our relationship," their statement went on to read. Is that a good idea? Sometimes, carefully; but, often, no.

A trial separation is a break, from your spouse, from "it all," to determine whether you are going through a low point in your marriage or should divorce. At first blush, it sounds like a good idea. No one wants to spend money divorcing needlessly, particularly when money is in short supply to begin with. But, if you are not careful, that separation to help you determine whether to divorce can snowball into the biggest problem in your divorce. Here's why:

Don't publicize it - Tell someone you are getting a divorce, and suddenly everyone has something to say. You'll hear horror stories, preaching, "legal advice" (c/o Google), all kinds of things, most of them inaccurate or exaggerated. And that means people are talking about you and your spouse. Like the game "telephone," what you say will come back to you contorted, and your spouse will have heard it, too. That often perpetuates a divorce. So, leave your Facebook status alone, skip the public statement and keep to yourselves.

Do tell close family - You should, however, tell close family that you and your spouse are separating. By "close," I mean the family members you can trust, your confidants. Be up-front about your plans so they are not surprised. Tell them what to say to your kids, of what not to say to them, if anything at all. This is a time to rely on your family for help - financially, morally and otherwise - so keep them informed.

Don't move out - Move out of your home, and your chances of retaining even equal time with your children or your precious belongings are slim to none. Those news stories about couples living in separate homes and sharing time with the kids are just that - stories. It rarely happens in real life, and it probably does not happen much in Hollywood life, either. To a judge, you look like the parent who gave up and the spouse who evidently did not care much about the baseball card collection to take it with you when you up-and-left. Judges rarely care how helpful you thought you would be by letting your wife stay with the kids or how much you intended to return to retrieve your belongings -your wife, who's angling to keep the kids and your stuff, will make you out to be nothing more than an abandoner.

Do see the kids if you do - If you have already moved out of the house, or have no other choice, then make a schedule to see your kids and stick to it. Have them spend overnights with you. If you do divorce, then you will have already established a pattern for parenting and shown your ability to provide for your children in a new environment. A parenting pattern and your ability to provide are two key factors a judge will consider when deciding who receives custody.

Don't maintain the status quo - You might agree to pay the bills for your wife while you rent a one-bedroom apartment (the expenses can't be that bad, right?), but you are fitting yourself for disaster if one of you files for divorce later. For one thing, if she really needs a job, you give her no incentive to get one. Moreover, by continuing to pay the mortgage, the insurance, the utilities, the grocery bill, etc., you are making her case for alimony. You send the message that you can support her, even if you can't, and are comfortable doing it, even if you aren't. the better thing to do is determine, before you separate, who is responsible for what bill, put the bill in that person's name (if possible), and follow-up to make sure the bill is paid.

Do open a separate bank account - It's amazing how many guys will move out of the house but keep their pay direct-deposited to their joint account for their wife's use. This might make sense, if she traditionally paid all the bills, but it's no good if she's getting ready to file for divorce. She has complete control over your money, and she could easily, and probably will, withdraw all of it right before she files - leaving you with a cent or two, or maybe an overdraft fee. While you are separated, open a separate account and put some money there for reserve - you'll need if things get ugly.

Don't date just to date - A trial separation is supposed to be a time to discover what you want, but that does not mean you have to test-out different women. Take this time to reflect on your marriage and your goals, and leave the casual dating alone. Otherwise, you could end up with your own "love child" and an unintended reason to get a divorce.

Do be honest about a new relationship - If you have met someone, however, be honest about it. Most States are "no-fault" divorce States, which means a girlfriend (including one you cheated with) makes not one difference. Even when an affair does matter, it matters only slightly or in cases of egregious sleeping-around that has confused your children and left you penniless. In other words, it is a limited consideration. It is a sad thing, but a true one, that marriages fall apart. That does not make you a bad person. If you have found someone else and believe it is time to move on, you are better off being honest about it than lying the rest of your marriage, to your family, your kids and yourself.

Don't delay the inevitable - The separation should be a short time to reflect. Believe it or not, many go on for years, both spouses waiting for the other to make the first move. The problem is, neither is happy, and one spouse (probably you) is stuck paying the bills.

Finally, do have a separation agreement - Define the parameters of your trial separation. Who will pay what bills? Are you allowed to date? To pick up the kids from school (you should)? To come home? How long will you wait before making the decision to divorce or reconcile? Will you go to counseling? Will you cancel joint credit cards (you should)? What is the best way to communicate with your spouse (phone, e-mail, text)?

Although, in some States, your separation agreement before a divorce begins will not replace an agreement to divide your property and debts made during your divorce, it is a good precedent. And it is a lot better than separating for an undefined time waiting for your marriage to work itself out like one of those Hollywood movies.

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